Comment on Harvey Jacobs' “Social conflict over property rights: the end, a new beginning, or a continuing debate?”

Abstract

Jacobs draws on history, law, politics, and policy to examine the development and response of the private property movement and the social conflict over property rights and public planning. This comment suggests that the debate be broadened beyond the advocates of property rights and planning to include the interests of other members of the community, including minority and low-income households who are often affected by the outcomes. Otherwise, property will continue to be used to exclude people from democracy, rather than include them.

Keywords:

• property rights
• racial segregation
• discrimination

Introduction

Jacobs describes the history of the property rights movement, placing the current conflict between private property rights and advocates of planning into a historical context. His blend of history, law, politics, and policy captures the tension between these two groups in their debate about individual and social rights. The tension outlined by Jacobs omits other relevant parties from this debate, including households that do not own property and individuals who are excluded from the political process. While Jacobs stresses the importance of planners and planning advocates joining the dialogue that the property rights advocates have initiated, the conversation needs to include more than those two sets of voices. This greater range is necessary to serve both democracy, in accordance with the underlying rationale of the property rights activists, and public interests, as desired by the planners.

The democracy-property link

Jacobs notes the association between democracy and property ownership, beginning in the 1700s and continuing today, explaining that this relationship underlies the current property rights movement. While rates of homeownership have reached historical highs in the last decade, one-third of the population lives in rental units. A subset of Americans have been denied opportunities to acquire and/or maintain property – by racial covenants in the 1950s, by lack of home financing throughout the twentieth century, and by aggressive subprime lending in the early 2000s. The link between property ownership and democracy is cause for concern, especially given the disproportionate incidence of minorities and low-income households among renters.

The nation's history of racial discrimination and residential segregation makes it likely that the group being excluded from the discussion of public and private rights may be the group most negatively affected. This was the experience with urban renewal and even zoning more generally, which has often been used to explicitly or implicitly exclude minority and low-income households. In Euclid v. Ambler Realty (1926), the Supreme Court stated that the introduction of apartment buildings to a neighborhood of single- and two-family homes could “utterly destroy” the residential character of the neighborhood (272 US 365, 394) and upheld the power of local jurisdictions to determine what land uses are permitted in identified zones. Whose rights as a property owner are to be protected? The owner of the 68 acres who wanted to construct an apartment building of which the first 620 feet were in a detached home zone or the owners of the homes in that zone who wanted to exclude the apartment building to protect the character of their neighborhood? The Court's concern for the safety of the children and their opportunities for “quiet and open spaces for play” did not extend to the children who might live in the apartment building and also would benefit from safe, quiet, open spaces for play (272 US 365, 394–95). Democracy is not served when property owners are able to use the political system to prevent other individuals from having the opportunity to become property owners and/or join in a community.

Would the tenets of the property rights movement support the restrictive covenants that individuals voluntarily entered into that prevented homeowners from selling their homes to Blacks, Jews, and other groups? Would these advocates for reduced government intervention support the right of Mrs. English, the spokesperson for Oregon's Measure 37, to sell her subdivided 40 acres to a developer of low-income housing? When is government action protecting the property rights of individuals and when is it impinging on those rights? In each of these scenarios, as well as in Euclid, the argument could go either way. It makes me wonder if the property rights movement is an attempt to ensure liberty through property rights, as its advocates argue, or an attempt to enable those with property (and political power) to limit the spread of liberty to others. I agree with Jacobs that this conversation cannot continue to be one-sided.

Defining public interest more broadly

The property rights movement has been energized, in part, by the Supreme Court's interpretation of the “public use” provision in the takings clause to include transferring private property to another private party for economic development purposes in Kelo v. City of New London. The debate between planners and the property rights movement can be viewed as one about the definition of “public interest,” with the property rights advocates arguing for a more narrow interpretation and the planners supporting a broader view. However, seeing this as a two-sided argument and encouraging planners to speak up may not ensure that public interests are served.

Public interest too often has been used as a synonym for economic interests, excluding other important community interests; again, consider urban renewal. When assessing what is in the public interest or what constitutes appropriate public use, planners may be discounting the benefits of social networks and neighborhoods (see Fullilove, 2004). Public interests could be construed to require that land use regulations and other government actions regarding property address community development issues, such as having people who work in the community also be able to live there, enabling families to join the community so that their children can attend good schools and have more opportunities, and maintaining social networks, as a complement to its consideration of economic development. A balancing of interests needs to consider the effects on individuals and neighborhoods, not just those fortunate to be land owners and involved in the political process.

Opening up the dialogue

Jacobs notes that the private property movement has initiated a discussion, albeit currently one-sided, and suggests that the planners join in this conversation. Specifically, he recommends that planners and planning advocates tell their own story, develop a language to discuss property, and embrace the idea of preparing a property rights impact statement. The impact statement would identify costs and benefits, short- and long-term consequences of action and inaction, how the proposal would modify or create property rights, and how such effects would be distributed. I support this idea, provided that such statements explicitly address the effect of any proposed plan or modification on a range of community interests, including the affordability of housing for low- and moderate-income families. For example, if a proposal to protect open land were being advocated, planners would consider not only how land owners would be affected, but how the supply constraint may make homes unaffordable for some households and how the spatial change might affect communication, transportation, and other networks. This would enable the community and its representatives to understand the effect of the proposal on different aspects, all of which are part of the public interest, and to make a more informed decision.

Let me conclude this comment following Jacobs' conclusion that “conflicting concepts about the rights of the individual and the right of government vis-à-vis property is a multi-century issue in the United States, whose character changes with the social conditions of the times” [p. 344]. While the rhetoric may change over the decades reflecting changing social conditions, one aspect has remained constant: the discussion between planners and property rights advocates has failed to adequately recognize the rights of property owners who have less political power and community members who have not been privileged to own property. The dialogue needs to be broadened, made into a multi-logue that focuses not on conflicts between property owners and planners but which considers issues of inequality, including the effect of decades of discrimination and racial segregation. If the debate is a vehicle for reframing the core values of the United States, those core values require that it be expanded to include more voices and more interests.

Acknowledgment

Pamela Blumenthal is a Ph.D. candidate at the George Washington University School of Public Policy and Public Administration. She previously practiced banking regulatory law.